May 28, 2021

EEOC Updates COVID-19 Vax Guidance, More to Come

On May 28, 2021 the EEOC updated its webpage on “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.” The updates, found in Section K, include 21 new items. Of those, 12 are new questions and answers, the rest are updates.  Here is a (brief) sneak peek at some of the more frequently asked questions and the latest answers.

Q: Can employer require all employees who enter the physical workplace to be vaccinated?

A: Yes, so long as you provide a reasonable accommodation under the ADA and Title VII for medical or religious objections, respectively.

Q: Can an employer require all employees to provide documentation confirming that they have been vaccinated?

A: Yes

Q: Can an employer offer an incentive to employees for voluntarily receiving the vaccination? If so, how much or to what extent?

A: Yes. If the employer or its agent is offering the vaccination, then the incentive, which could be a reward or a “punishment,” should be small enough to not be coercive. That is because the employer or its agent will have to ask and employees will have to answer pre-vaccination disability-related screening questions. So, a very large incentive could make employees feel pressured to disclose protected medical information. But if the incentive is offered for employees to get the vaccine from a third party provider, such as the employee’s local pharmacy or health department, the limitation on the amount of the incentive does not apply.

Q: Same question as above, but with regard to the employee’s family member voluntarily receiving the vaccination?

A: It depends. Yes, if the family member receives the vaccination from a third party provider. No, if the family member receives the vaccination from the employer or its agent. This would violate the Genetic Information Non-Discrimination Act.

What Else? NOTE #1 – Stay tuned. The EEOC advises us, “On May 13, 2021, the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention (CDC) issued updated guidance for fully vaccinated individuals, exempting them from masking requirements…The EEOC is considering the impact of this CDC guidance on EEOC’s COVID-19 technical assistance provided to date.”

NOTE #2 – Don’t stop here. Read the next article about actions states and local jurisdictions are taking that may make it unlawful for employers in those locations from requiring COVID-19 vaccinations.